Bressler Risk Blog

“Robbins Geller Wants To Fight FIFA Suit DQ At 2nd Circ.” —

• “The law firm urged U.S. District Judge Louis L. Stanton on Tuesday to extend the case’s current stay by two months so it can seek so-called mandamus review of his May 19 decision to boot it from representing Grupo Televisa SAB investors, who say their shares tumbled following revelations that the Mexican media company bribed international soccer officials to secure broadcasting rights to the FIFA World Cup.”
• “Judge Stanton removed Robbins Geller from the lead counsel spot it had held since 2018 as punishment for hiding that former class representative Colleges of Applied Arts & Technology Pension Plan, which claimed to have lost $968,000 when the stock dropped, also earned $11 million from shares it held in a Canadian investment fund that had shorted Grupo Televisa.”
• “But the firm said Tuesday that the Second Circuit should weigh in on whether it was required under the Private Securities Litigation Reform Act, or PSLRA, to disclose the short position. It said that without an appeal, the precedent set by Judge Stanton’s order could muddy securities litigation with limitless claims involving third-party traders.”
• “‘No identified PSLRA plan of allocation has required the disclosure or accounting of trades other than a claimant’s own transactions in the subject security,’ Robbins Geller wrote. ‘The injection of third-party trading into PSLRA actions would make it impracticable to administer them, as overlapping claims would be virtually impossible to identify, and disputes over who has legal right to them would spawn endless litigation.'”
• “‘Not only is the challenge to this court’s disqualification order not ‘clear and indisputable,’ that order is manifestly correct,’ Grupo Televisa wrote. ‘What is clear and indisputable is that Robbins Geller was not entitled to falsely represent and conceal the existence of CAAT’s massive short position from the court and defendants alike at every turn during the first eighteen months of this action.'”

“Corporate Legal Departments Seek Increasingly Rigorous D&I Goals, Expectations for Outside Counsel” —

• “While diversity and inclusion has increasingly topped the priority lists of corporations over the last several years, corporate legal departments are calling upon their outside counsel to keep up.”
• “‘There’s got to be accountability on both sides,’ said Ed Blakemore, assistant general counsel at Rockwell Automation. ‘So corporate counsel have to hold themselves accountable to actually review their bills and know who’s doing their work. That’s a non-negotiable. And then outside counsel have to actually staff your matters with diverse folks.'”
• “Markel Insurance, for example, in surveying the law firms representing 80% of their legal spend, broadened the scope to include questions about socioeconomic status, asking whether individuals are the first generation in their family to graduate from college or the first generation in their family to be an American citizen. The team is also considering including age, on both ends of the spectrum.”
• “‘We’re trying to define diversity as broadly as we can, because we hire lawyers all over the country and all over the world. And I don’t think we can have the same expectations of a firm in Detroit as we would of a firm in Boise, so we’re trying to be very broad about it,’ said Shannon Stevens, Markel’s legal audit claims manager.”
• “While D&I data collection and analysis can become about as complex and expensive as you’d like it to be, it doesn’t necessarily have to be.”
• “‘For the corporations that may just be getting started on this journey, you can actually just call your representative outside counsel … and ask them to send you a report broken down, maybe over the last two years by gender, race, maybe looking at some other factors,’ Blakemore said. ‘Most firms, unless they’re grossly incompetent, can get you that report in less than two weeks, and then you’ll have your data that at least gives you a baseline.'”
• “When it comes to enforcing D&I expectations with outside counsel, the jury’s still out on the “correct” approach. Some corporations penalize their firms for not meeting their D&I goals, while others reward firms with bonuses or more work when they do.”
• “Regardless of whether the department chooses to use the carrot or the stick approach to hold their outside counsel accountable, the panelists all noted the importance of setting quantifiable goals and expectations for the firms they work with and clearly communicating these goals with their outside counsel.”

“Emails Show Biglaw Lawyer Was In Deep With Donald Trump Election Case When Firm Claimed To Have No Idea” —

• “Cleta Mitchell used to be a partner at Foley & Lardner. She and the firm swiftly parted ways after the Washington Post and Atlanta Journal-Constitution secured audio of the former Biglaw attorney participating in a call where Donald Trump seemed to tick all the elements of Georgia’s election fraud statute without discouragement or chiding from the licensed attorneys in the room (including someone only known as Alex that Above the Law ultimately identified as now-former Fox Rothschild attorney Alex Kaufman).”
• “The next day, Foley & Lardner announced that she was out, which marked a laudably quick resolution in an industry not known for quick turnarounds. The firm’s statement noted that it had decided not to touch the various ‘Big Lie’ litigations with a 10-foot pole back in November and had no knowledge that Mitchell was running around doing the highest-of-stakes lawyering without their knowledge.”
• “This morning, Carrie Levine from the Center for Public Integrity tweeted this now-released December email. This places Mitchell deep in the case at least by the end of December and, language like ‘we didn’t include… in our lawsuit’ certainly suggests that Mitchell saw herself as involved as early as December 4.”
• “From the moment this broke, the firm was adamant that it had not been retained in this matter and that Mitchell participated as a private person. Unfortunately, it’s not that easy to flip the firm affiliation switch from an ethical or potential liability perspective — a fact that likely played a big role in her departure.”
• “It would, however, explain why the firm was unable to police the matter. If she’s not submitting the matter for a conflict check and just showing up without clearing it through the proper channels, they really couldn’t know what’s going on.”
• “At that point, it’s all about trust. Can you really trust your partners not to jeopardize the platform with their own selfish behavior? Whether it’s an attempt to eke out another few bucks in billables by taking on a surprise local counsel gig or actively hiding a matter from the firm by playing it off as private participation doesn’t really matter — it’s about making sure everyone you work with is truly pulling the same direction.”
• “That’s why quickly addressing this sort of behavior is important, but at some point firms need to have a reckoning about the risk of putting faith in people they don’t unreservedly trust as colleagues. Because if the last few months have taught us anything, it’s that folks who run in these circles aren’t afraid to take reckless actions. And that’s not good for any firm.”

“Fluor Says Bombing Case Could Be ‘Undone’ Without Judge Switch” —

• “Fluor Corp. asked a federal judge to reconsider her decision not to transfer an Afghanistan bombing lawsuit to another judge in the same district because of a conflict of interest, asserting that it will preserve the matter for appeal if the transfer doesn’t happen.”
• “The plaintiff in this case, Winston Hencely, sued in February 2019 alleging Fluor didn’t do enough to stop a suicide bombing attack in 2016. Other related cases filed with the court this year—now 13—were also assigned to Judge Bruce H. Hendricks.”
• “Hendricks transferred those cases to Judge Joseph Dawson III, on May 3 because of a presumed conflict, but kept the Hencely case.”
• “Hendricks denied Fluor’s motion to transfer the Hencely case in a May 12 text order, stating there was no conflict of interest from an attorney and niece-by-marriage who was working on the transferred cases. Hendricks said there was no close relationship with the attorney, and that transferring the case after two years would be highly inefficient.”
• “Fluor’s reconsideration motion here said Hendricks didn’t fully consider a conduct rule requiring mandatory disqualification if a person within the third degree of relationship with the judge is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”
• “Hendricks improperly relied on a subjective analysis of the per se conflict instead of confronting the mandatory nature of the rule, Fluor said.”

“Judicial Ethics Opinion 21-39 [March 26, 2021]” —

• “This responds to your inquiry (21-39) asking about your ethical obligations if your law clerk’s second degree relative obtains employment with a local law firm as an attorney.”
• “The Committee has previously advised that a judge is not required to disqualify him/herself when an attorney who is a relative of the judge’s law clerk within the fourth degree of relationship appears in the judge’s court. Instead, the judge must disclose the relationship and advise that the law clerk will be insulated from the attorney and their law firm’s cases. After disclosure, if a party objects to the judge’s continued participation, the judge has the sole discretion to exercise recusal.”
• “If the attorney/relative is in private practice, the judge’s disclosure obligation extends to the attorneys’ partners and associates. However, if the attorney/relative appears on behalf of a public law office, the judge’s obligation is limited to only those cases where the attorney actually appears or has had some involvement, such as a supervisory role, in the case.”

“Law Firm General Counsel Have Never Been So Important. Here’s Why.” —

• “As the legal industry undergoes seismic change and grapples with the pressures caused by COVID-19 and ever active regulators, the law firm general counsel has arguably never been so important.”
• “Slaughter and May general counsel Julia Adams also points out that while scrutiny of the industry by regulators, clients and the public has always loomed large, the fast changing landscape currently means the importance of the role cannot be underestimated.”
• “‘It is more than simply ensuring compliance,’ she explains. ‘The role of the City lawyer is evolving fast. GCs need not only to keep abreast of changes that are coming but to understand the impact of these on the organisation so that risks can be mitigated.'”
• “Despite Adams’ clear intention to keep regulation high on the agenda, she says it’s crucial to ensure that governance ‘does not stifle individuality, innovation and the right of partners to question decisions.'”
• “‘For obvious reasons, unlike ‘normal’ internal clients, practising lawyers will be tempted to self-diagnose, and often want to understand the law behind internal policies,’ Adams explains.”
• “Richard Follis, Shoosmiths’ inaugural GC who took on the role in May 2021, agrees. He says there is a ‘balance to be struck between mitigating risk at law firms without creating a lot of red tape.’ ‘To guard against risk you have to know where it is and prepare for it – the GC is essentially the lightning rod through which all of our knowledge about and defences against risk can be channelled.'”
• “Another challenge, Clifford Chance’s Perrin says, is establishing common standards in an increasingly international world. He explains that the ‘huge proliferation of regulation that is applied in different ways across different countries,’ has made the task extremely complicated.”
• “His key achievement was getting a new global conflict management system accepted within the firm, after realising the former way to manage conflict was ‘totally inadequate.’ The new centralised process was ‘radical’ and a ‘huge success,’ he says – with little push back from partners.”
• “‘The process quite quickly came to be highly regarded by partners, and it’s very rare for the conflict analysis and decision to be seriously challenged internally; perhaps about five times in 20 years. That’s extraordinary and I’m proud of that.'”
• “Legal technology is being embraced by the industry, but making sure individuals understand exactly what they have access to and how they use it ethically is a crucial consideration for Adams, she says.”

“A Privilege Lesson from Elizabeth Holmes: Have a Look at Your Engagement Letter. At the Very Least, Have One.” —

• “The Theranos founder last week lost out on her bid to keep a batch of emails between her and the company’s former lawyers at Boies Schiller Flexner out of her upcoming criminal trial. One thing that weighed against her: The lack of any sort of engagement letter between the firm and the company.”
• “A federal magistrate judge in San Jose, California, last week opened the door to the possibility that a trove of emails between lawyers at Boies Schiller Flexner and officials at Theranos could be submitted as evidence in the upcoming criminal trial of the defunct blood-testing company’s founder Elizabeth Holmes. While exactly what is contained in those emails will have to wait to be seen, one nugget from the decision over whether the communications were privileged jumped out: Boies Schiller didn’t have an engagement letter with Theranos or Holmes.”
• “That lack of documentation is especially surprising considering Boies Schiller’s wide-ranging relationship with Theranos, which covered everything from advising on the company’s patent portfolio to consulting on interactions with the press to dealing with inquiries from government agencies to handling litigation matters over the course of a half-decade.”

“Legal Recruiter Can’t DQ Old Co.’s Atty In Trade Theft Suit” —

• “A federal magistrate judge has denied a legal recruiter’s bid to disqualify his former company’s counsel in a trade secrets suit, ruling that while the attorney may have to now be a witness at the trial, disqualifying him from pretrial proceedings would be premature.”
• “Evan P. Jowers is accused of trade secret theft and breach of contract by his former company, MWK Recruiting Inc. He had attempted to disqualify Robert Kinney, head of MWK subsidiary Kinney Recruiting LP, from working on the case because he will likely be a necessary witness at trial.”
• “U.S. Magistrate Judge Andrew Austin said Thursday the court should wait until pending summary judgment motions are decided before determining if disqualifying Kinney is necessary. ‘It is possible — indeed, likely — that the resolution of those motions will narrow the issues for trial, which will directly impact how ‘necessary’ Kinney’s trial testimony might be,’ making disqualification at this stage premature, Judge Austin said in the ruling.”
• “MWK sued Jowers in 2018. Jowers, who started at MWK in 2006, allegedly used information he obtained through MWK to start placing candidates through his own recruiting firm before leaving MWK in 2016, violating a noncompete agreement he signed when he started work.”
• “Thursday’s order marks the latest turn after the close of bitter discovery, marathon depositions and what Judge Austin has described as a ‘downward spiral … into absurdity.'”
• “In December, Judge Austin nearly sanctioned Jowers’ California-based counsel, Robert Tauler of Tauler Smith LLP, for using ‘scorched earth discovery tactics.’ In April 2020, Judge Austin told Kirkland & Ellis LLP, which is not a party in the case, that it should be ashamed for its ‘petty, technical, overly argumentative’ response to a request for information in the case.”

“Glenmark Says Glitch Calls For Supplement To DQ Testimony” —

• “In a letter to Senior U.S. District Judge R. Barclay Surrick, Glenmark Pharmaceuticals Inc. said there was a glitch that corrupted a portion of the recording of the May 5 hearing in Pennsylvania federal court, including during the testimony of the company’s general counsel who waived any purported conflict of interest created by Morgan Lewis’ work on behalf of co-defendant Teva Pharmaceuticals in separate civil litigation.”
• “As a result of the failed recording, Glenmark said, there’s no transcript of its waiver.”
• “At the hearing last month, Rizkalla testified that he had considered and was comfortable with potential conflicts created by Morgan Lewis’ work on behalf of Teva, but Judge Surrick said he wanted to hear from Teva about its understanding of the firm’s dual representation.”
• “Federal prosecutors sought the hearing in March as they pointed out that Morgan Lewis, which is representing Glenmark in the criminal case, was also representing Teva in multidistrict civil litigation over alleged price-fixing by generic-drug makers, and that the firm had also worked on behalf of Teva as part of the investigation leading up to its indictment in August.”
• “Morgan Lewis has pointed to a so-called ‘ethical wall’ it set up in January 2017 after it started representing both companies in connection with alleged price-fixing the previous year.”

“More Law Firms Are Vetting Cases for Political Risks. But There’s No Foolproof Solution” —

• “Amid political polarization throughout the United States, an increasing number of law firms are seeking to vet their lawyers’ engagements for potential political fallout in addition to client conflicts. As Barnes & Thornburg recently discovered, the reputational risks are high if not done properly, while firms face competing business pressure to act quickly for clients.”
• “The firm announced June 4 that it had parted ways with labor and employment partner Alec Beck after the attorney put his name on a new federal lawsuit on behalf of prominent President Donald Trump supporter and conspiracy theorist Mike Lindell without prior authorization. The incident attracted a firestorm of attention and criticism toward Barnes & Thornburg on social media.”
• “Barnes said it ‘has clear procedures for evaluating and authorizing proposed new client matters before they can proceed, including local counsel engagements. As we shared last week, this recent matter was engaged without receiving firm authorization pursuant to internal firm approval procedures.'”
• “Several law firm public relations professionals said that they are seeing a growing number of firms implementing procedures to assess clients and engagements for reputational risk. For now, though, the process is bound to be imprecise, particularly because speed matters in new matters.”
• “‘It’s a delicate balance to tell entrepreneurial partners who are trying to get new business to slow up,’ said former Morgan, Lewis & Bockius managing partner Tom Sharbaugh.”
• “And introducing politics into the question adds a level of complexity that goes beyond working through the firm’s existing roster of clients for conflicts. Should firms be flagging every new potential matter in an email for each member of the partnership, prompting questions over confidentiality and privilege? Or feeding each one to a small committee that could quickly be overwhelmed by a huge administrative burden?”
• “‘Neither one is perfect,’ said a former Am Law 200 media relations professional who sought anonymity based on his current employer’s policies. ‘But I do think this is necessary work. Even if there’s no great solution, the reality is that firms are going to be getting black eyes left and right if they’re not doing this appropriately.'”
• “The incident places Barnes in the ranks of others such as Fox Rothschild and Foley & Lardner that were forced to take action against attorneys who aligned themselves with efforts to cast doubt on the integrity of the 2020 presidential election.”
• “‘Firms don’t want to restrict the freedom of their people to believe whatever they want to believe,’ said former Orrick, Herrington & Sutcliffe chairman and CEO Ralph Baxter. ‘But now, there are business consequences of taking positions on issues that are themselves political, so it’s going to be harder for firms to navigate that.'”

“Why Documenting What You’re Not Retained to Do Can Be Important Too” —

• “In my experience, too many lawyers appear to be quite comfortable running with an assumption that their client’s understanding of what the scope of representation is aligns with theirs. This is one of the reasons why I suspect trying to convince lawyers to document scope of representation on all new matters is a never-ending task. Getting buy-in on documenting what one has been retained to do is hard enough. Now, I’m going to add to this advice a recommendation that lawyers should also be thinking about documenting what one has not been retained to do. It’s an uphill battle, I know; but it’s a battle worth fighting. Here’s an example of why.”
• “A nonprofit regularly reaches out to a plaintiff personal injury lawyer on behalf of clients of the nonprofit. After a family member was shot and killed by police, this nonprofit retained the lawyer for the purpose of gathering as much information about the shooting as he could, to include obtaining video footage of the shooting from the police department. The purpose was to provide the nonprofit’s client with information that would help her understand what led to the shooting. While the lawyer worked with the nonprofit’s client, the nonprofit paid his fee. Documentation of the lawyer’s role was minimal, consisting primarily of a few emails with both the nonprofit and its client, none of which properly addressed the issue other than to say he would take care of gathering information.”
• “…This is when things went off the rails. The nonprofit’s client reached out asking about the video and also raising concerns about what the recent running of the statute of limitations means for her case. Of course, in the lawyer’s mind he never agreed to pursue this claim. He viewed his role to be limited to information gathering. However, the nonprofit’s client appears to see it differently.”
• “The lawyer’s immediate concern was how his reputation might be damaged when the nonprofit’s client complains to the nonprofit. His fear was referrals might now go elsewhere. And then there’s the possibility of a grievance being filed and/or a malpractice claim, all for the want of proper documentation of his scope of representation.”

“Judge’s secret romance triggers courtroom conflict of interest” —

• “The failure of a Victorian judicial officer to disclose a secret personal relationship with a lawyer has been found to breach basic conflict of interest, but an investigating panel said the conduct is not serious enough to sack them.”
• “A panel of the Judicial Commission of Victoria (JCV) recommended that the judge not be kicked off the bench, despite their silence on an occasion when a lawyer they were romantically linked to appeared before them in court.”
• “The panel found the judge’s ‘personal and intimate relationship’ with the lawyer, and subsequent omissions about it during court proceedings, amounted to a conflict of interest. ‘The [judicial officer] failed to use the multiple opportunities when the prospect of an appearance arose to identify and respond to the potential issue. Instead, the officer promoted or condoned further appearances,’ a statement from the JCV said.”
• “The panel also said that when asked about the relationship and the failure to address the obvious ethical problem, the judge’s response tended to water down the significance of the conflict.”
• “The judge’s choices reflected poor-decision making, the panel said, and they must to attend at least one counselling session to ‘explore the stressors that contributed’ to this ethics breach.”
• “This latest JCV finding comes after another similar issue was addressed in the High Court about the relationship between a judge and barrister involved in a family court trail. That case has prompted the Australian Law Reform Commission to undertake a review of the laws on judicial impartiality and bias.”

Dentons Partners Shari L. Klevens and Alanna Clair remind us: “Watch Out for Risks When Moving Offices” —

• “As the practice of law adjusts to a post-pandemic world, many firms are evaluating their current office space and the lasting impact of the sudden transition to work-from-home over the last year. Because of anticipated changes to the office environment, some firms may look elsewhere for an office that better suits their needs.”
• “But a successful move requires overcoming numerous logistical challenges. Law firms may view the move as an opportunity to ‘clean house’ by discarding old or seemingly unneeded files that do nothing more than take up space. However, the decision to destroy files can be complex and may implicate the ethical obligations attorneys owe to their clients.”
• “If documents needed to protect client interests have been destroyed, the law firm risks not only the ability to defend against a legal malpractice claim brought by that client, but also may receive a bar grievance or other complaint for failing to take the steps necessary to surrender papers and property to which the client is entitled.”
• “This typically does not require law firms to maintain all records and papers indefinitely, however. Law firms can consider the costs associated with storing old files. For every law firm, the level of risk the firm is willing to take when disposing of old files versus the price it is willing to spend to keep them in storage will vary; there is rarely a one-size-fits-all solution to this issue.”
• “Generally, documents from closed files can be divided into three categories. The first category is documents, such as originals, that have special legal significance (wills, leases, contracts, etc.)… The second category includes documents subject to a “litigation hold” … The third category encompasses nearly all other documents… Those documents can be retained for the number of years required by state bar rules or until the statute of limitations for any legal malpractice claims has lapsed, whichever is greater.”
• “The ABA, in Informal Opinion 1384, identifies some additional considerations for attorneys deciding how long to hold onto materials or documents.”

ABA INFORMAL OPINION 1384: GUIDELINES FOR CLIENT FILE RETENTION/DISPOSITION —

• “Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or on behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records).”
• “A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.”
• “A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.”
• “In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.”
• “A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.”
• “In disposing of a file, a lawyer should protect the confidentiality of the contents.”
• “A lawyer should not destroy or dis pose of a file without screening it in order to determine that consideration has been given to the matters discussed above.”
• “A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.”

Interesting story from Canada: “Professional Negligence Claim Dismissed Against Lawyer Despite Conflict Of Interest And Breach Of The Standard Of Care” —

• “The plaintiffs, a husband and wife, sued their former lawyer, who had been disbarred by the time of the hearing. Their claim had nothing to do with allegations of missing trust funds or dishonesty which led to the lawyer being disbarred. Rather, it was a claim for professional negligence and breach of retainer.”
• “In mid-2011, the lawyer was asked to prepare documents in order to secure the outstanding loans from the plaintiffs. The lawyer prepared a General Security Agreement (GSA) over the assets of Maplesoft and registered the security under the Ontario Personal Property Security Act (PPSA). The plaintiffs were not directed to obtain legal advice, and the lawyer did not obtain written consent to the joint retainer or otherwise comply with the rules concerning conflicts of interest as required by Rule 3.4 of the Law Society of Ontario’s Rules of Professional Conduct.”
• “At first blush, it may have appeared that the plaintiffs had a strong claim. There was no doubt that their lawyer had acted in a conflict of interest and had failed to document the consent and instructions of his various clients. The lawyer admitted that he should have prepared a promissory note in 2011 in order to “paper the loan.” There was little doubt that the lawyer’s actions and omissions were careless and fell below the standard of care required of a reasonable and prudent lawyer in the circumstances of the retainer.”
• “None of this was sufficient, however, to establish liability for negligence. In that regard, the plaintiffs failed to show how the lawyer caused their alleged damages. Proof of loss is an essential element of an action for professional negligence. As stated by Justice MacLeod, “there can be no liability for negligence unless some consequential damage has been suffered by the plaintiff.”
• “Similarly, conflict of interest is not an independent cause of action without proof of damages resulting therefrom: Lacroix v. CMHC and McCann v. CMHC, 2016 ONSC 2641 (Div. Ct.)… it was not clear how the lawyer’s conflict of interest gave rise to any losses. The male plaintiff negotiated directly with the CEO of Maplesoft and there was no evidence that the plaintiffs had relied on the lawyer for business or financial advice. The male plaintiff had signed a release and subordination of security interest at Maplesoft’s request without seeking any advice from the lawyer before doing so.”
• “The decision affirms the principle that a finding of a breach of a duty of care or conflict of interest by a professional does not end the question of whether the professional was negligent or caused the plaintiffs any losses. Negligence requires proof of foreseeable damages that result from the alleged error or omission. Plaintiffs who focus on the alleged error or omission without taking steps to quantify and prove the damages that allegedly result therefrom may face a summary dismissal of their claim.”